GOVERNMENT CONTRACTS
Department of Defense (DOD) Notice and Request for Comments: Negotiation of a Reciprocal Defense Procurement (RDP) Agreement with the Republic of India
On October 10, 2023, DOD issued a notice that, on behalf of the U.S. Government, it is contemplating negotiating and concluding a new RDP Agreement with the Republic of India. If DOD (for the U.S. Government) concludes a new RDP Agreement with the Republic of India and DOD executes a blanket public interest determination, as intended, India will be listed as one of the qualifying countries at Defense Acquisition Regulations System (DFARS) 225.872–1(a). Among other benefits accorded to products of qualifying countries, offers of qualifying country end products are evaluated without applying the price differentials otherwise required by the Buy American statute and the Balance of Payments Program. DOD is requesting industry feedback regarding its experience in public defense procurements conducted by or on behalf of the Indian Ministry of Defence or Armed Forces. The Notice is available here. Comments are due November 9, 2023.
Small Business Administration (SBA) Gives Contractors More Flexibility to Hit Small Biz Goals, Law360
The SBA finalized a long-awaited rule giving federal contractors flexibility to choose whether to use suppliers below their immediate subcontractors to help determine whether they’re meeting their small business participation goals. Read more here (subscription required).
Biden Calls on Agencies to Spur More Competition with Their Regs, Government Executive
The Biden administration released a new requirement for agencies throughout government to think more carefully about expanding competition through their regulatory actions. President Biden has targeted antitrust trends in the economy as a key part of his domestic agenda and the White House said the new guidance will help enforce those efforts through an “all-of-government approach to competition.” The Office of Information and Regulatory Affairs document creates frameworks for agencies as they develop and analyze potential regulatory actions. Read more here.
Small Business Administration (SBA) Correction: Ownership and Control and Contractual Assistance Requirements for the 8(a) Business Development Program
SBA is correcting a final rule that was published in the Federal Register on April 27, 2023. The final rule implemented several changes related to the 8(a) Business Development program, but inadvertently omitted a regulatory change instruction to clarify language stating how the funds remaining in the joint venture bank account at the conclusion of the joint venture contract(s) and/or termination of the joint venture are to be distributed. This correction clarifies that the funds remaining in the joint venture bank account shall be distributed at the termination of the joint venture according to the percentage of ownership. The correction is available here and is effective as of October 11, 2023.
Upcoming Government Contracts Presentations
TRAINING: VIP START: Legal Considerations: How Best to Structure Your Company as a Federal Contractor, October 24, 2023, Isaias “Cy” Alba, IV. Read more here.
WEBINAR: Keys to Preparing a Winning Bid for DHS’s $5.6 Billion PACTS III IDIQ, October 26, 2023, Isaias “Cy” Alba, IV. Read more here.
WEBINAR: Joint Venture and Mentor-Protege Bidding Strategies (2023), November 9, 2023, Peter B. Ford and Meghan F. Leemon. Read more here.
CONSTRUCTION / LABOR & EMPLOYMENT
Department of Labor (DOL) News Release: Biden-Harris Administration Scales Program to Expand Equal Opportunity, Diversity in Construction Trades for Jobs on Large Infrastructure Projects
The DOL announced the designation of additional federally funded construction projects for participation in the Mega Construction Project Program. Launched by the Office of Federal Contract Compliance Programs in March 2023, the program fosters equal opportunity in the construction trades workforce, helping to expand access to the millions of good-paying jobs being created by President Biden’s Investing in America agenda. Read more here.
FALSE CLAIMS ACT / AUDITS & INVESTIGATIONS
Federal Acquisition Regulatory (FAR) Council Updates Whistleblower Protection, Small Business Rules, Federal News Network
Contractor employees will have enhanced whistleblower protections starting November 6, 2023, after a year’s long effort to improve protections. In its final rule, the FAR Council made disclosing certain information permanently protected. Additionally, contractors and subcontractors are unable to be reimbursed for reprisal claim defense legal fees and must inform their employees about these whistleblower protections. Read more here.
How More Than $600M in COVID Relief Funds Spent Last Year Went Unreported, Government Executive
According to the Government Accountability Office (GAO), about $600 Million in COVID relief funds went unreported last year. The lack of reporting makes it difficult to track fraud, waste, and abuse. Thousands of localities, many of them small communities, didn’t follow the law last year and report to the federal government when they spent their COVID stimulus dollars, according to a report released by the GAO. Read more here.
LABOR & EMPLOYMENT
Clocking in with PilieroMazza: Davis-Bacon Act Classification Requirements for Construction Contractors: Identifying Issues and Mitigating Risks, PilieroMazza Podcast, Nichole D. Atallah and Mark F. Rosenow. Click here to listen to the podcast.
Civilian Agency Acquisition Council (CAAC) Letter Authorizes Agencies to Issue Class Deviations to Address Legal Challenges to Executive Order (EO) 14026, Increasing the Minimum Wage for Federal Contractors
On September 26, 2023, the U.S. District Court for the Southern District of Texas enjoined President Biden and the DOL from enforcing EO 14026 or the DOL’s implementing rule against the States of Texas, Louisiana, and Mississippi and their agencies. The injunction does not apply geographically to all contractors or contracts within those three states; rather, it applies only to these three states and their agencies as parties to federal contracts. As a result of the order, the CAAC letter directs agencies to ensure their workforce does not enforce the requirements of the EO or DOL’s final rule as implemented in FAR 52.222-55 (January 2022) for federal contracts or subcontracts to which the states of Texas, Louisiana, or Mississippi, including their agencies, are a party, and authorizes agencies to issue agency deviations to FAR 52.222-55 while the injunction is in effect. Read more here.
4 Attorney Generals Tell 9th Circuit Contractor Wage Hike Out of Bounds, Law360
The Republican attorneys general of four states continued to push the Ninth Circuit to vacate an Arizona federal judge’s ruling that President Biden had the power to raise federal contractors’ minimum wage to $15 an hour, saying only Congress has the authority to enact those statutes. Read more here (subscription required).
Senate Bill Would Codify Remote Work, Increase Telework Reporting, Government Executive
A bipartisan pair of senators proposed legislation that would codify federal employees’ use of remote work in federal law, as well as establish stronger reporting and training requirements for telework and authorize the noncompetitive hiring of military and law enforcement spouses into remote work positions. The Telework Reform Act also would authorize noncompetitive hiring of military and law enforcement spouses into remote work positions. Read more here.
Upcoming Labor & Employment Presentations
TRAINING: VIP START: Labor Rules & Regulations: Federal Market Compliance, October 25, 2023, Nichole D. Atallah. Read more here.
WEBINAR: Construction Contractors and the New Davis-Bacon Act Rule: Increased Costs, Heavy Regulatory Burden, October 31, 2023, Sarah L. Nash. Read more here.
CYBERSECURITY & DATA PRIVACY
New Rule Sets Stage for Banning Risky Technologies from Government Supply Chains, Federal News Network
Federal contractors will need to closely monitor a government acquisition website for directives that ban products and services due to security concerns, similar to the Huawei ban, under a new rule published this month and set to go into effect in early December. Read more here.
Software Bills of Materials (SBOMs) Are Just the Start, Not the End, of the Software Supply Chain Conversation, Federal News Network
The conversation around software supply chain security has centered quite a bit on SBOMs, which is basically like a list of ingredients for all the components that are included in software. But Carol Woody, principal researcher for the Software Engineering Institute at Carnegie Mellon University, said focusing exclusively on SBOMs can run the risk of missing the other half of the problem: How is the software purchaser going to use it, and what risks are inherent in that use? Read more here.
